In a not-so-shocking development, both sides in a closely watched copyright suit known as the "Dancing Baby" case are urging the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit") to rehear their case, unhappy with the court's middle-of-the-road ruling last month. A discussion of that ruling can be found here.
The petitions for en banc or panel review arise out of eight years of litigation regarding whether Universal Music Corporation ("Universal") abused the Digital Millennium Copyright Act's ("DMCA") takedown procedures when it demanded that YouTube remove Stephanie Lenz's video – a 30-second clip of her son dancing to Prince's "Let's Go Crazy" – without first considering whether the video made fair use of the copyrighted song. The Ninth Circuit sided with Lenz in holding that copyright owners have an obligation to consider fair use before sending takedown notifications, but arguably "split the (dancing) baby" by noting that they could do so merely by forming a "subjective good faith belief" that the material was infringing.
On October 20th, Lenz requested that the court reconsider the issue, seeking an uncompromised victory: a ruling that copyright owners must form an objectively reasonable belief that content is infringing before sending a takedown notice. Lenz argued that the majority's reliance on cases interpreting the requirement of good faith was misplaced, as the DMCA requires a good faith belief. The word "belief," she argued, already requires a subjective state of mind. As a result, if any subjectively held viewpoint is a "good faith belief," then she noted that the words "good faith" are superfluous. Instead, Lenz, in her brief, reasoned that "good faith belief" as stated in the DMCA connotes a subjectively held viewpoint (a "belief") that is also reasonably held (in "good faith"). In emphasizing the case's practical importance regarding free speech on the internet, Lenz stated the Ninth Circuit's majority decision has "the effect of giving private parties the ability to do what no court could: silence even lawful speech, based on nothing more than a supposition."
That same day, Universal filed its own petition for a panel rehearing, asserting that Lenz lacked standing to bring the suit in the first place. Because her video was ultimately reinstated to YouTube, Universal claims that Lenz has suffered no concrete injury, personal to her, that a court can redress. In a subsequent filing opposing Lenz's request for en banc review, Universal also asserted that adopting Lenz's interpretation of "good faith belief" would effectively rewrite DMCA takedown rules.
It could take the Ninth Circuit months to respond to the requests for a rehearing, so the future of the current appeal will remain unsettled for quite some time. As always, FI&C attorneys will be monitoring future developments as they become available. One noteworthy certainty? The "Dancing Baby" will likely reach his preteen years before this copyright lawsuit is over.